In the case of the written word, I can quote a few words from the latest best-seller and know that I am legally protected by the doctrine of fair use. In the case of digital media, the US 6th Circuit Court of Appeals ruled that no such fair use exists at all when it comes to sampling. In the case of the written word, it is possible to quote and rearrange concepts as a form of criticism, satire, parody, or public discourse, but the record industry claims there is no such right when it involves quoting from their music catalogs. In the case of the written word, it is possible to draw inspiration (and characters) from multiple sources and to bring those characters together in a new context to reveal new truths (or at least discussions) about the human condition, but when this is attempted with musical materials (such as Danger Mouse’s The Gray Album), the music industry demands no less than total destruction of all such works.

Whatever freedoms have been won when it comes to the textual world of the printing press have been forfeited when it comes to the digital presses of the musical world, which is surprising because both the written word and the musical sound are fundamentally covered by precisely the same law: copyright. Why should copyright treat one expression, one media so differently than another?

In the US Constitution copyright law is predicated on the belief that such law will have the effect of “promoting science and the useful arts”. It is a bargain, refereed by the government, between a private interest and the public’s interest. The Creative Commons community has argued long an eloquently how much the terms of the bargain have shifted over the past 100 years to favor the private parties over the interests of the public and I shall not repeat those arguments here. But I will point out a voice that made these same arguments in the 1960s, years before modern technologies and a runaway legal system produced the copyright nonsense that is systematically and comprehensively destroying our cultural vitality: Glenn Gould.

Gould knew that music gives voice to the composer, that the instrument gives voice to the artist, and that the concert hall provides a space in which music and artistry can be experienced: a moment of the sublime. More than most artists at the time, Gould recognized the power of a recording studio to honor music and artistry, but also to employ such technology that moments of the sublime can be captured, imagination can become reality, and intention can be expressed beyond the limits of a single space, a single audience, a single moment in time. Such has always been the highest aspiration of any recording project.

But such aspirations are not without their own self-made challenges. As Gould wrote in his essay The Prospects of Recording “Recordings deal with concepts through which the past is re-evaluated, and they concern notions about the future which will ultiumately question even the validity of evaluation.” Gould suggest that the solution to this problem lies not with the composers, performers, or engineers per se, but with the listeners themselves:

At the center of the technological debate, then, is a new kind of listener—a listener more participant in the musical experience. The emergence of this mid-twentieth-century phenomenon is the greatest achievement of the record industry. For this listener is no longer passively analytical; he is an associate whose tastes, preferences, and inclinations even now alter peripherally the experiences to which he gives his attention, and upon whose fuller participation the future of the art of music waits.

He is also, of course, a threat, a potential usurper of power, an uninvited guest at the banquet of the arts, one whose presence threatens the familiar hierarchical setting of the musical establishment. Is it not, then, inopportune to venture that this participant public could emerge untutored from that servile posture with which it paid homage to the status structure of the concert world and, overnight, assume decision-making capacities which were specialists’ concerns heretofore?

We can well imagine why the existing establishment may not welcome such participation from the listening audience, but what about culture itself? Culture should welcome any participation that promotes progress in the arts!

Gould also says this:

The keyword here [in the immediately preceding quotation] is “public.” Those experiences through which the listener encounters music electronically transmitted are not within the public domain. One serviceable axiom applicable to every experience in which electronic transmission is involved can be expressed in that paradox wherein the ability to obtain in theory an audience of unprecedented numbers obtains in fact a limitless number of private auditions. Because of the circumstances this paradox defines, the listener is able to indulge preferences and, through the electronic modifications with which he endows the listening experience, impose his own personality upon the work. As he does so, he transforms that work, and his relation to it, from an artistic to an environmental experience.

Gould’s essay from 1966 ends with this thought: “The audience would be the artist and their life would be art.” But this can never happen as long as copyright law dictates that being a listener makes one a priori eternally beholden to all that is first listened to. Our current copyright regime denies as a fact the very idea of a free culture, because it prohibits that which can be heard from being transformed and transmitted anew, at least not without signing legal agreements every single step of the way. And as many of the cases have shown, even that is not enough, you have to sign and agreement and then win the right in court to use what you paid for. In such a world, the audience and the artist alike become the defendants, and their life is not art, but trials and punishment. That is not the sustainable basis for any culture, other than a culture of fear.

Thanks, all, for writing your comments, and thus contributing to this discussion.

To the question “doesn’t culture primarily advance through people creating new works, as opposed to recycling old ones?” I would say the answer is beyond my ability to answer in a perfectly factual manner. Since we’re talking about Gould, perhaps his perspective on the matter could be enlightening. The article in question (from The Glenn Gould Reader, edited by Tim Page) is “Strauss and the Electronic Future”, and he writes:

We tend to visualize a greatly exaggerated concept of historical transformation, and, for reasons that seem expedient in helping us make history approachable and teachable (in order to make history captive is perhaps closer to the point), we tend to prefer antithetical descriptions of historical point and denial, and to those we assign descriptions, term that are consequently infected with all sorts of extraneous notions about progress and retrogression.

By way of example, he asks the reader to imagine an improvisation of a piano sonata in the style of Haydn so artfully done that one could pass it off, and have it accepted as a previously unknown work of Haydn. Gould then asserts that it would be accorded value commensurate with Haydn’s reputation. But he then suggests that if one were to change this false attribution, and say it is in fact a work by Mendelssohn, “the reaction to this bit of news would run something along the lines of ‘Well, a pleasant trifle, obviously old-fashioned but certainly shows a good command of an earlier style’—in other words, bottom-drawer Mendelssohn.” He then continues the thought experiment by considering what would happen if the work were attributed not to a later composer, but an earlier one, like Vivaldi. Gould says “with that condition in mind, this would be greeted as one of the true revelations of musical history—a work that would be accepted as proof of the farsightedness of this great master, who managed in this one incredible leap to bridge the years that separate the Italian baroque from the Austrian rococo, and our poor peice would be deemed worthy of the most august programs.” He continues:

In other words, the determination of most of our aesthetic criteria, depsite all our proud claims about the integrity of artistic judgment, derives from nothing remotely like an “art-for-arts-sake” approach. What they really derive from is what we could only call an “art-for-what-its-society-was-once-like” sake.

When you begin to examine terms like “originality” with reference to those constructive situations to which they do in fact analytically apply, the nature of the description that they provide thends to reduce the imitation-invention ratio in a work of art quite properly to a simple matter of statistic. Within this statistic no work of art is ever genuinely “original”—if it were, it would be unrecognizable. All art is really variation upon some other art, and the more we divorce the application of terms like “originality” from those analytical observations to which they can profitably apply, the more uncertain is the ground upon which we erect our evaluations of art.

Gould is obviously talking about cultural valuation, not financial valuation, and he’s talking about music originality instead of a specific property right, but I agree with him that to the extent that the question asked above (“doesn’t culture primarily advance through people creating new works, as opposed to recycling old ones?”) reduces to an either-or evaluation of creativity vs. recycling, the question is not based in reality. And to the extent that it does not, the question becomes merely aesthetic. I may write as pompously as Gould, but I’m not going to be the arbitrary judge of what makes music worthy or garbage for anybody but my own aesthetic self.

Another reader comments “One last thought: look at the EXPLOSION in the arts, since copyright law was established. It might not be perfect, but it’s far from out and out wrong. What’s needed is not less technology, but more.” I agree with the conclusion, but not the assumption. Namely, I agree that more technology creates more art, as can be seen by the contrast of the cave dwellers of Lascaux (who did not have agricultural technologies) to the city-states of Egypt (who did). Gould takes this a step further (in the same article, “Strauss and the Electronic Future”) by saying

implicit in electronic culture is an acceptance of the idea of multilevel participation in the creative process

which I completely agree with. Thus, more technology does create more opportunity for art. However, I think it is an error in logic to attribute this to copyright, for two reasons. First, because the term copyright is overbroad. If we were talking about copyright at the time of Thomas Jefferson, which was 14 years, then I’d have no complaints. The second because not just in term (from 14 years to what has become, for all practical purposes due to constant legal goalpost moving, perpetuity), but because copyright has become so broad, and in some cases, so retroactive, that whatever creativity one might attribute to its existance is disingenuous. By way of example, consider the Eiffel Tower. As blogged by Michael Mikelthwaite

The Eiffel Tower’s likeness had long since been part of the public domain, when in 2003, it was abruptly repossessed by the city of Paris. That’s the year that the SNTE, the company charged with maintaining the tower, adorned it with a distinctive lighting display, copyrighted the design, and in one feel swoop, reclaimed the nighttime image and likeness of the most popular monument on earth. In short: they changed the actual likeness of the tower, and then copyrighted that.

As a result, it’s no longer legal to publish current photographs of the Eiffel Tower at night without permission…

Is it really proper to credit the beauty of the Eiffel Tower to copyright, even though copyright now applies? I don’t think so.

Finally, as to the question of how much control the artist should have over the disposition of their works, it’s an age old question. Once upon a time, the Church argued that none but the highest priests should have access to the Word of God, lest the uninitiated, or worst, the heretics, make a mess of it. Gutenburg changed that. But for all the freedoms we have gained when it comes to words and the press, we seem to have fewer and fewer when it comes to music, and I lament that loss.

yeah but one difference you don't point out is that quoting form an academic text is not neccessarily going to lead to profit, as a result of the other persons work. If you sample a massive portion of someone elses work, then release it as a single, license it to coco pops, feature it on goerge bush's conference party speech etc. then clearly that is not right. Laws, listener interaction or whatever. There are plenty of infringements of copyright in this way which are nothing whatsoever to do with 'adding to culture', but ways to make a quick buck off someone else's work. For example, the way that boy bands / pop acts all cover old classics as it's an easy single - Well at least, someone is being vaguely compensated for that kind of thing - imagine if you wrote a song and found madonna making millions off it, licensing it etc. etc. simply because she could not write her own song. OK mnaybe some more people would have exposure to you, but that's not why you make art, and to have your work callously appropriated by commercial forces to make money, is not cool. One thing the copyright does at least attempt to do is protect the creators from misappropriation of your work in this way.

I started reading this thinking I was going to be enlightened, sadly, I was not. Gould's reedy, snooty prose can be summed up as such: if you create something you should not be able to profit from it. Of course, to be so succinct is anathema to academia, where verbosity is preferred, so given Gould's job, anything less than overkill would be failure.

One last thought: look at the EXPLOSION in the arts, since copyright law was established. It might not be perfect, but it's far from out and out wrong. What's needed is not less technology, but more. Copyrights should be kept an online database, so that when you want to use someone else's idea, you can get permission fast -- or not.

And creative commons is great. Personally, I think the language used to describe the various levels of permission has not been battle hardened in enough court cases, but in time, it will be an ideal alternative to the blanket protection of standard copyright.

copyright law is quite clear about reuse and excerpting of musical compositions, especially the part about public performance

so quit whining that you have to pay David Bowie royalties when you steal his bass line, or how "unfair" it is that composers with the talent to write catchy melodies "hog" all the royalties from thier work

arguing "culture" is incredibly disingenuous - is piracy part of the "culture" of Somalia? And if so, does that make it okay for Somali thugs to board ships, rape, kill, and steal? Because it's a "cultural" thing?

grow up, write your own music, and quit whining that "The Man" doesn't like it when you try to steal from your betters.

The statement "In the case of digital media, the US 6th Circuit Court of Appeals ruled that no such fair use exists at all when it comes to sampling," is false. The Sixth Circuit did rule that there is no de minimis defense to a claim of infringement of a sound recording. But it explicitly did not address fair use: "Since the district judge found no infringement, there was no necessity to consider the affirmative defense of 'fair use.' On remand, the trial judge is free to consider this defense and we express no opinion on its applicability to these facts."

There is a large difference between taking a quote from a written work and using it in what is 99.5% percent a new writing and taking a bass line or rhythm track from someone's song and looping it so that the looped sample now represents 20-80% percent of a so-called original song. The latter is not an uncommon occurrence, and I think it is this practice that led to the outcome, "Sampling is stealing." But, the previous post points out that there is still the possibility of a "fair use" defense -- just don't blow it by doing a loop of your favorite riff.

The more I study BOTH sides of the copyright/creative commons debate, the more I am beginning to side with copyright. Why shouldn't it be up to the artist as to who can "remix" their works? As someone mentioned before, if you don't mind if your original works are used in your most hated politician's next campaign, then you should be totally against copyright. With copyright protection, we are able to decide if a company or other public figure may use our works out of context (even if it collides with the song or the artist's message).

It's not just about fans doing remixes for fun at home, it can be a much bigger issue. Most artists enjoy when fans do cool stuff with their tunes, but not when someone else uses it to further their career or make some extra income because that's not why the creators are doing it. Those artists who ARE trying to further themselves in terms of fame and money have the option to grant permission to corporations and pop entertainers to use their material under copyright law.

Yes you have to enter into a legal agreement, but that serves to ensure that both parties agree on particular items and a defined term of contract. And while many labels that artists enter contracts with are ripping down simple fan remixes just shows that the agreements the artists enter into ALLOW the labels to do this. That's the nature of it. Artists choose to sign or not sign these contracts giving those backward thinking labels control over their work. To me it's all up to the artist. Choose the right label for you, and consider laying out in the agreement What is fair use of your material and what isn't. And copyright gives artists the control over the things they create. The creation of material IS what enriches the culture. The other stuff is the result and proof of that enrichment and it SHOULD be encouraged, but giving up copyrights means that any big corporation or politician who you may vehemently disagree with the total ability to remix your art too.

I have updated Copyright v. Culture, but due to the vagaries of the MTT content management system, that update does not bubble up to the site (though it does, I am told, bubble out through RSS). Therefore, to many who commented on my first posting, you might not know that I attempted to respond to at least three distinct criticisms.

Please do visit that article if you would like to see the followup. In the future, I'll probably write new journal entries instead of followups.

I have real difficulty even trying to justify fair use for sampling. Sampling, by its very nature, is intended to capitalize on another's work. It blatantly violates the exclusive rights of the copyright holder (reproduction, derivative works, distribution, performance, and display). Moreover, it goes against the criteria of Fair Use because it's generally done for profit and therefore has an economic effect on the copyright holder (regardless of the 2004 ruling). Even when the proportion of the sampled work is taken into account, the mere purpose of sampling is most often to bring a listener to the point of recognition, so in essence, it becomes a derivative work. Sampling, by its nature, is not used for educational purposes, literary or social criticism, news reporting, or even parody. Without licensing, it is the sonic equivalent of plagiarism. So, especially being held to the same standard as a literary work, sampling couldn't even come close to qualifying for Fair Use.

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